Case Number: ELRC1133-24/25GP
Commissioner: PAUL PHUNDU
Date of Award: 30 APRIL 2025

In the ARBITRATION between

Union/Applicant’s representative: Mr. Fistos Mohlatlole (In person)
Union/Applicant’s address:

Telephone:
Telefax:
E-mail:

Respondent’s representative: Ms. Tania Motalib
Respondent’s address:

Telephone:
Telefax:

Details of hearing and representation

[1] This is the arbitration award in the arbitration between Fistos Mohlatlole (the Applicant) and Department of Education-Gauteng (the Respondent). The matter was set-down for arbitration in terms of Section 191(5) (a) of the Labour Relations Act, 66 of 1995.

[2] The arbitration hearing was conducted virtually on 27 March and 14 April 2025.
[3] The Applicant attended the arbitration hearing and he represented himself. The Respondent was represented by, Ms Tania Motalib, Deputy Chief Education Specialist.
[4] The proceedings were conducted in English and were digitally recorded.
[5] Both parties handed in a bundle of documents marked Annexure “A” and “B” the contents are not in dispute.
[6] I have also kept handwritten notes.
[7] Both parties have submitted written closing arguments and these have been considered.

Preliminary Point

[8] The Respondent raised an interlocutory point and alleged that there is no dismissal dispute before the Council because the Applicant’s fixed term contract of employment came to an end as agreed between the parties and the application must be dismissed. The Applicant opposed the application.
[9] Dismissal is in dispute.

Issue to be decided

[10] I am required to determine whether the termination of the fixed term contract constituted a dismissal or not. If dismissal is established, I must determine the fairness thereof and in the event of unfairness, determine the appropriate remedy.

Background to the issue

[11] The Applicant was in the employ of the Respondent placed at Reasoma High School on a fixed term contract of employment started on 15 April 2024 ended on 31 December 2024 against a growth position.
[12] The Applicant was employed on a fixed term contract as an Educator.
[13] The Applicant is claiming that he was unfairly dismissed by the Respondent.
[14] The Applicant referred a dispute to the Council. Conciliation failed and the certificate of non-resolution of the dispute was issued. The matter proceeded to arbitration. In terms of relief, the Applicant prays for reinstatement.

The Applicant’s case

[15] Mr. Fistos Mohlatlole testified, under oath, that he was employed by the Respondent as an Educator on a fixed term contract of employment.
[16] The Applicant stated that he was dismissed by the Respondent because it created a reasonable expectation of permanent of employment. He indicated that his school performed very well during 2024 and Grade Eleven’s obtained 90%. He was given a 2025 time-table and his name appeared on it, according to him, this created an expectation of permanent appointment. The Human Resources Official by the name of Nontobeko, assured him that the Principal of the School would retain his services.
[17] The Applicant stated that he worked beyond his fixed term contract of employment and there was selective re-employment committed by the Respondent. The Applicant indicated that he reported for duty in January 2025 and assisted with intervention, meaning analysing the performance of Grade 12 learner’s performance in 2024 as well as distributing books to learners. The Applicant agreed that he received a stipend of R100.00 a day for providing these services in January 2025.
[18] The Applicant further stated that the fixed term contract was unjustifiably used by the Respondent.
[19] It is the Applicant’s prayer that he was unfairly dismissed and he should be re-instated to his previous position.
[20] Under cross-examination Mr Mohlatlole agreed that he was expected to leave his fixed term position of employment on 31 December 2024. He agreed that he was only employed for 9 months.
[21] Mr Mohlatlole also confirmed that in January 2025 he worked as a volunteer and he was paid a stipend of R100.00 per month.
[22] Mr Mohlatlole also agreed that he was employed temporarily on a growth post and there was reduction in the number of learners enrolled hence his contract was not extended.
[23] Mr Mohlatlole also did not deny that Mr Maake was re-employed on a promotional position whilst Ms Modisakeng was also re-employed on promotional post and both thought maths and science respectively, subjects not taught by the Applicant.

The Respondent’s case

[24] Mr. Mike Mhangwana testified, under oath, that he is employed by the Respondent as the Principal of Reasoma High School. He confirmed that the Applicant was employed on a 9 months fixed terms contract of employment. The contract started on 15 April 2024 and ended on 31 December 2024.
[25] He said the Applicant was not offered a new contract because the number of learners dropped. Besides, the Applicant knew from the 15 April that his temporary contract of employment would come to an end on 31 December 2024.
[26] Mr. Mhangwana indicated that the Applicant was on a growth post and there was no growth. He said it was untrue that the Respondent created an expectation to appoint the Applicant permanently.
[27] Under cross-examination Mr. Mhangwana confirmed that school readiness and time-table preparation for the following year, mentioning the names of educators does not amount to creation of permanent employment.
[28] He further indicated that the Applicant was not dismissed but his contract came to an end.

[29] Mr Ricky Mlilo testified under oath, that he is employed by the Respondent as the Deputy Principal of Reasoma High School.
[30] He stated that on 18 November 2024, he received a Directive from the Department of Education informing him to terminate all growth posts. At the time, he had two growth positions occupied by the Applicant and his other colleague terminating on 31 December 2024. He implemented the Directive and the Applicant was not the only employee terminated.
[31] In January 2025, he received an email from the Applicant thanking him for allowing him to volunteer at the school and he was paid a stipend of R100.00 per day. He did not respond to the email.
[32] On 17 January 2025, the Applicant was called into a meeting and reminded that he needed to leave the school premises because his temporary contract of employment ended on 31 December 2024.
[33] He concluded by stating that it was not true that the Applicant worked beyond his contract of employment and there was also no selective re-employment practiced by the school.
[34] Under cross examination Mr. Mlilo confirmed that no one promised the Applicant about permanent employment as there was no such vacancy at the school.
[35] He stated that the Applicant was not dismissed but his contract came to an end.
[36] Mr Linda Mabutho testified under oath, that he is employed by the Respondent as Assistant Director-Human Resources.
[37] He stated that the Applicant was employed temporarily on a growth position due to an increase in the number of learners the previous year. The Applicant was offered a 9 months fixed term contract of employment and he was offered the position because he knew the school environment and also volunteered at the school.
[38] The Applicant’s contract started on 15 April and came to an end on 31 December 2024. According to him, the Applicant was not dismissed but his contract came to an end.
[39] Under cross-examination Mr confirmed Mabutho confirmed that the number of learners at the school dropped and there was a directive issued instructing all the Principals in the District to terminate and not to renew contracts for growth positions because of the decline in numbers.
[40] Mr Nefhale Micky testified under oath, that he is employed by the Respondent as Head of Department at Reasoma Secondary School. The Applicant was employed as an economist teacher on a 9 months fixed term contract of employment starting from 15 April and ending on 31 December 2024.
[41] In January 2025, the Applicant visited the school despite his expired contract of employment. The Applicant came to check the results of the learners and analysed the matric results. The Applicant was paid a stipend of R100.00 for this and this also applied to other educators from other schools who came to assist with the analyses of the matric results and this was a practice at the school.
[42] Under cross-examination Ms Nefhale confirmed that the Applicant was at the school in January 2025 as a volunteer hence he accepted a stipend.

Analysis of evidence and arguments

[43] The dispute in essence amounts to whether, on the facts of the matter, the Applicant has discharged the onus of proving that the termination of his contract of employment falls within the parameters of “dismissal” as defined in section 186 of the Act.
[44] In terms of Section 186(1) (a) (b) (i)(ii) of the LRA, dismissal means that an employer has terminated employment with or without notice; an employee employed in terms of a fixed-term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms, or did not renew it; or to retain the employee in employment on an indefinite basis but otherwise on the same or similar terms as the fixed-term contract, but the employer offered to retain the employee on less favourable terms, or did not offer to retain the employee..
[45] In terms of Section 188 of the LRA, “a dismissal that is not automatically unfair, is unfair if the employer fails to prove –

(a) That the reason for dismissal is a fair reason 
    (i) related to the employee’s conduct or capacity; or
    (ii) based on the employer’s operational requirement; and

(b) That the dismissal was effected in accordance with a fair procedure.”

[46] It is common cause that the parties entered into a written fixed term contract of employment. The duration of the contract was 9 months. The Applicant is challenging the decision of the Respondent not to appoint him permanently or to renew his fixed term contract of employment. The Applicant alleged that the Respondent promised to appoint him permanently. As a result, his dismissal was unfair.
[47] The Applicant confirmed in writing by acknowledging and signing the fixed term contract that he understood the contract to be temporary employment which would come to an end on 31 December 2024. In essence, the Applicant had accepted that his employment was temporary in nature.
[48] I reject the Applicant’s testimony that the Respondent created an expectation to appoint him permanently. The reason for my rejection is that the Applicant knew as at 15 April 2024 that his temporary fixed term contract of employment would come to an end on 31 December 2024. Secondly, there is no evidence before me proving that the Respondent had created an expectation to appoint the Applicant permanently. Thirdly, the Applicant failed to call Nontobeko to come and corroborate his allegation that the Principal promised to retain his services. This allegation must fail because it remains unsubstantiated. Lastly, Grade Eleven achievement of 90% does not create an expectation of permanent appointment.
[49] It is my finding there was no reasonable expectation of permanent employment created by the Respondent.
[50] I reject the Applicant’s testimony that he worked beyond his duration of the contract. The reason for my rejection is because the Applicant accepted a stipend of R100.00 per day for intervention or analysis of matric results as well as distribution of books. The Applicant did not query this payment because he knew it was a stipend for the services rendered by him and other educators from other districts.
[51] In my view, this was not an extension of his contract and he did not work beyond his contract of employment because he conceded that he volunteered in January 2025.
[52] There is no evidence before me proving that the fixed term contract of employment was unjustifiably used by the Respondent.
[53] I reject the Applicant’s testimony that there was selective re-employment because he could not disprove that Mr Maake was re-employed on a promotional position whilst Ms Modisakeng was also re-employed on promotional post and both educators thought maths and science respectively, subjects not taught by the Applicant.
[54] I agree with Mr Mhangwana that the Respondent did not create an expectation to appoint the Applicant permanently.
[55] I am satisfied and accept Mr. Mhangwana’s testimony that school readiness and time-table preparation for the following year, mentioning the names of educators does not amount to creation of permanent employment.
[56] I accept the Respondent’s argument that the Applicant was not dismissed. I believe that the Applicant’s fixed term contract of employment came to an end.
[57] It is my finding that the Applicant was not dismissed but his fixed term contract of employment came to an end.
In NUM obo Mpaki v CCMA & Others (JR1983-2014 [2016] the Labour Court stated the following in par 31:
The first part of the test is whether the applicant had formed an expectation of renewal. In the absence of any such evidence the employee has failed to pass the first part of the test. On this ground alone the applicant has failed to discharge the onus to show that there was a reasonable expectation of renewal of the fixed term contract. The application on this ground alone should fail.
[58] Turning to the facts of the present case, it is my finding that the Applicant has failed to discharge the onus of showing that he was dismissed.
[59] The contract of employment came to an end as per the terms stipulated in the contract of employment. Therefore, there was no dismissal.

Award
[60] It is my finding that there was no dismissal.
[61] The Applicant is not entitled to any relief.
[62] The Applicant’s referral of a dispute is dismissed.

Council’s Part-time Commissioner: Paul Phundu